JUDGMENT

Eusoffe Abdoolcader FJ:

A short, swift and simple solution to the point in issue in these proceedings was regrettably occluded by the manner in which the basic issue arising for determination was presented, discussed and considered before the matter came before us. It is not necessary for the purposes of this judgment to set out the facts of the case at any length as the issue involved is primarily one of law pertaining to the winding up by order of Court of Ismail Mahyuddin Enterprise Sdn. Bhd. (`the Company'), a company incorporated under the Companies Act, 1965. The Company was ordered to be wound up and the respondent was appointed provisional liquidator thereof by an order of Court made on 22 July 1976 on petition presented by a creditor on 14 November 1975. The respondent was subsequently appointed liquidator of the Company by an order made on 7 March 1977. By virtue of the provisions of s. 219(2) of the Companies Act the winding up was deemed to have commenced at the time of the presentation of the petition therefor, namely, 14 November 1975.

The appellant, in response to a notice dated 28 October 1976 issued by the respondent to creditors of the Company to prove their debts, lodged with the respondent a proof of debt for a sum of over two million dollars allegedly incurred as a result of an agreement it had entered into with the Company and two other parties on 19 November 1975 and a supplemental agreement of the same date and the execution of certain letters of guarantee and performance bonds by it between 10 June 1975 and 19 November 1975. The respondent, however, by a notice dated 20 April 1982 rejected the appellant's claim on the basis that the debt had been incurred after the commencement of the winding up on 14 November 1975 and that there was no evidence to substantiate the fact that the agreement of 19 November 1975 had taken effect. The appellant appealed to the High Court against this decision primarily on the ground that the debt or liability had in fact been incurred before the commencement of the winding up by negotiations which took place in early October 1975 culminating in agreement between the parties at a meeting held on 4 November 1975 and that the agreements of 19 November 1975 and the related documents were merely a formalisation of the agreement arrived at previously between the parties which was before the commencement of the winding up on 14 November 1975. Anuar J holding that the debts were incurred after the commencement of the winding up of the Company as the moneys claimed were in fact paid on 14 February and 20 December 1977, upheld the respondent's decision and dismissed the appeal on 12 July 1982. The appellant then brought this further appeal before this Court.

The fallacy, as we see it, in the consideration hitherto of the propriety and legal tenability of the appellant's claim lies in the determination of the effective date for the purposes of the proof of debt, scilicet, whether it is the date of the order for the winding up of the Company or that of the commencement of the winding up. That is the nub of the matter before us and we should perhaps digress to mention that, on the factual aspect, Mr. Rajah for the appellant had to concede when we put it to him that there was insufficient evidence on record to substantiate the appellant's contention that the debt or liability in question was in fact incurred before the commencement of the winding up on 14 November 1975. To revert to the matter of the effective date, s. 219(1) of the Companies Act, in so far as it is material for present purposes, provides that in every winding up, subject in the case of insolvent companies to the application in accordance with the provisions of the Act of the law relating to bankruptcy in force for the time being in the State of Malaya, all debts payable on a contingency and all claims against the company present or future certain or contingent ascertained or sounding only in damages shall be ad